Update: The Second Circuit’s decision in United States v. Betts (No 17-231), which was initially released as a non-precedential summary order on February 5, 2018, was re-released as a published opinion on March 28, 2018. A copy of the opinion can be found here. This upgrade to a precedential opinion is consistent with the Circuit’s recent focus on reasonableness review of the conditions of supervised release. For more on that subject, see our recent post on United States v. Donahue (17-943-cr) Second Circuit Continues To Give A Close Look To Supervised Release Conditions. We also welcome the Court’s decision to make this ruling one with precedential impact rather than a summary order. Even when the legal standard is neither disputed nor newly pronounced, the development of the law requires the application of the standard to different sets of facts, so that attorneys may argue by analogy. Given the relative infrequency with which sentences are reversed for being unreasonable, more guidance from the Circuit is always appreciated.

In United States v. Betts (No. 17-231), the Court (Leval, Calabresi, Cabranes) vacated by summary order the imposition of a special condition of supervised release prohibiting the consumption of alcohol by a defendant whose crime bore no relation to alcohol use. This short summary order underscores the Court’s willingness to scrutinize conditions of supervised release to confirm that they are reasonably related to the nature and circumstances of the defendant’s offense or personal history and involve “no greater deprivation of liberty than is reasonably necessary.” U.S.S.G. § 5D1.3(b).

The U.S. District Court for the Western District of New York had sentenced defendant Jeffrey Betts to ten months’ imprisonment, followed by four years of supervised release relating to multiple violations of a term of supervised release that Betts was serving for a previous conviction for conspiracy to commit bank fraud. While serving his original term of supervised release, Betts was repeatedly cited for failing to make restitution payments and was twice arrested for driving without a license. After failing to notify his probation officer following his second arrest, Betts was sentenced to an additional term of ten months’ imprisonment and four years of supervised release. Both terms fell within the U.S. Sentencing Guidelines range of four to ten months’ imprisonment and up to five years of supervised release (less any term of imprisonment imposed). In addition, the district court imposed two special conditions with which Betts took issue: first, the court ordered that Betts refrain from consuming any alcohol, and second, the court required substance abuse testing and noted that there would be “zero tolerance of the use of any drugs at all.”

On appeal, the panel quickly dispensed with Betts’ challenge to the substantive reasonableness of his four-year term of supervised release. Although this term was at the upper end of the Guidelines range, the district court provided sufficient justification for the imposition of a four-year period of supervised release, including the fact that Betts had repeatedly violated the terms of his earlier supervised release—behavior that indicated a disregard for the law.

As to the special conditions of supervised release, however, the panel did find error. Although the panel acknowledged that district courts possess “broad discretion” in imposing conditions of supervised release, the panel emphasized that that discretion is not boundless: U.S.S.G. § 5D1.3(b) requires that each condition be “reasonably related to . . . the nature and circumstances of the offense and the history and characteristics of the defendant.” The panel explained that neither Betts’ underlying bank fraud offense nor his supervised release violations involved alcohol; there also was no evidence that Betts had a history of alcohol abuse. Moreover, the district court did not provide any explanation for imposing this special condition, “beyond a clearly stated displeasure with the defendant’s performance while on supervised release.” The panel therefore vacated this condition and determined that the standard supervised release condition prohibiting the “excessive use” of alcohol would be more appropriate.

As to the ban on drug use, Betts contended that the district court’s comment that there would be “zero tolerance of the use of any drugs at all” amounted to a complete ban on the use of all drugs, even those prescribed by a doctor. The panel agreed that the district court’s statement was poorly worded; however, the panel read that statement in conjunction with the condition prohibiting Betts from using “any controlled substance, . . . except as prescribed by a physician” and concluded that the district court had, in fact, intended the “zero tolerance” policy to apply to Betts’ use of illegal, unprescribed controlled substances only.

In affirming the special condition requiring periodic drug testing, the Court displayed a willingness to read “inartfully worded” conditions in a manner that renders them reasonable under the Sentencing Guidelines. However, in striking down the alcohol ban condition, the Court also demonstrated that it will not rubber stamp a special condition of supervised release, particularly one that appears to bear no relationship whatsoever to a defendant’s personal history or the underlying offense. We have seen the Second Circuit and other courts take this position in recent years, especially in cases involving child pornography. See, e.g., United States v. Reeves, 591 F.3d 77 (2d Cir. 2010) (vacating a condition requiring the defendant to notify his probation officer when he established a “significant romantic relationship” as not reasonably related to the objectives of sentencing); see alsoUnited States v. Kappes, 782 F.3d 828, 835-36 (7th Cir. 2015) (vacating and remanding the sentences of three defendants based on defects in their conditions of supervised release and stressing the importance of “supervised-release conditions that are properly-noticed, supported by adequate findings, and well-tailored to serve the purposes of deterrence, rehabilitation, and protection of the public”). This trend reflects an increasing—and welcome—recognition by courts of the fact that supervised release constitutes a significant deprivation of liberty and that conditions must be reasonably tailored to the individual defendant. If a particular defendant has a substance abuse problem, he should receive treatment and a prohibition on alcohol use might be reasonable, but as a general matter, individuals on supervised release should not be barred from the pleasures of ordinary life that are available to people who are at liberty.

One caveat for practitioners: in some cases, the unreasonable or illegal condition of release may have been relevant to the selection of the overall sentence imposed. When this happens, the Court of Appeals may decide not merely to strike the condition, but to remand the case for a full reconsideration of the sentence to be imposed. See United States v. Bello, 310 F.3d 56, 64 (2d Cir. 2002) (holding that a prohibition on watching television is not an appropriate condition of probation with home detention, and remanding for full resentencing). As has happened before, the irksome condition may be struck down but replaced with a harsher sentence. See John Lehman, “Tube Boob Appeals His Way Into Jail,” N.Y. Post (Jan. 23, 2003) (imposing 15-month sentence of imprisonment on remand when Circuit struck down television-ban condition of probation with home detention).[1]